The Battle of the Oil Titans: Qatar drags UAE to the ICJ alleging violations of the CERD

In what can be said as a fresh face-off in already hostile relations between The State of Qatar and Gulf countries, the former acting under parens patraie doctrine has initiated proceedings at the International Court of Justice against United Arab Emirates (UAE) on 11th June invoking Article 36, paragraph 1, of the Statute of the Court and Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 (hereinafter CERD).

The proceedings come a year after Qatar was accused of funding terrorism in the region keeping in view its proximity with Iran and consequently, Egypt, Bahrain, UAE and Saudi Arabia severed its diplomatic and trade ties with it.

Qatar (Applicant) in its application to the Court contends that “[t]he UAE has enacted and implemented a series of discriminatory measures directed at Qataris based expressly on their national origin [that] remain in effect to this day, resulting in alleged human rights violations.”

According to Qatar, on and following 5 June 2017, the UAE expelled all Qataris within its borders; prohibited them from entering or passing through the UAE; closed UAE airspace and seaports to Qatar and Qataris; interfered with the rights of Qataris who own property in the UAE; limited the rights of Qataris to any speech deemed to be in support of or opposed to the actions against Qatar; and shut down the local offices of Al Jazeera Media Network, and blocked the transmission of Al Jazeera and other Qatari media outlets. Qatar claims that those measures interfere with a number of rights, including the right to marriage and choice of spouse, result in violations of the rights to freedom of opinion and expression, the right to education and the right to work, and impact the rights of Qataris to own property and enjoy equal treatment before tribunals.

Consequently, it alleges the violation of Articles 2, 4, 5, 6, and 7 of the CERD by UAE, through its State organs, State agents, and other persons and entities exercising governmental authority, and through other agents acting on its instructions or under its direction and control.

Qatar has also sought provisional measures from ICJ pending the dispute under Article 41 of the Statute, which will ensure no action is taken by UAE which will be prejudicial to its rights and dispute in the Court or which will aggravate the sanctions against its subjects in UAE.

The tactical decision of Qatar to initiate proceeding under CERD as neither Qatar nor UAE had accepted the Court’s jurisdiction as compulsory under the optional clause is to be appreciated. Further, the answer as to why Qatar decided to proceed only against UAE and not against Bahrain, Saudi and Egypt lies in the fact that the others have made reservations against invoking jurisdiction under Article 22 of the CERD. Therefore, unless and until these three countries consent to bring the case before ICJ, no proceedings can be initiated against them.

Though the application made by Qatar hasn’t been made public by the Court’s registry, prima facie reading of the press statement released by the Court raises the question as to future of the proceedings.

The contention raised by Qatar in its application makes a good case for it to seek redressal by the world court, keeping in mind the precedent of the court it does seem like it will succeed. Though it is understandable and clear that ICJ isn’t a court of precedents and the decision has no binding force except between the parties and in respect of the particular case, as mentioned under Article 59 of the ICJ statute but the court practice shows that ICJ has referred to its earlier decisions while delivering its verdicts via subsidiary sources Art. 38(1)(d).

In 2008, Georgia made an application to ICJ against the Russian Federation under Article 22 of the CERD in the backdrop of the latter’s invasion in the former’s territory and use of force.

Article 22 of the CERD which was the basis of the jurisdiction reads as follows-

“[a]ny dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.”

Georgia argued before the Court that Article 22 was merely descriptive of a process which parties could avail to settle the dispute and on the other hand Russia submitted that the Article contained binding pre-conditions for the Court’s seisin and until they had been exhausted the court plainly had no jurisdiction.

In 2011, the Court held by ten votes to six, that Georgia didn’t meet the two inbuilt prerequisites of Article 22 before initiating proceedings in ICJ i.e. entering into negotiations and taking recourse to measures provided under CERD despite both parties being parties to CERD.

Earlier in DRC v. Rawanda’s Case, the Court had held similarly that prerequisites were mandatory for seisin under Article 29 of the Convention on the Elimination of all Forms of Discrimination Against Women i.e. parties must have undertaken arbitration before invoking ICJ’s jurisdiction.

It is to be noted that the question as to whether both requirements (negotiation and CERD complaint procedure) are cumulative or alternative wasn’t entered into the discussion by the Court in Georgia’s case as it hadn’t initiated either of them.

In the present case in hand, Qatar agreed for negotiating with the agents of the quartet nations when it was presented with 13 demands having Kuwait and US as mediators but later Saudi found demands to be non-negotiable. It is also said that Qatar filed its complaint against UAE and Saudi Arabia to the Committee of the CERD and it was acknowledged by the representative of the OHCHR. Hence, Qatar has met with both the requirements as to invoking the jurisdiction of ICJ under CERD.

In case UAE argues that Qatar hasn’t attempted to negotiate the matter before approaching the court, the dissenting opinion in Georgia’s case can come to rescue as it provides for more flexible interpretation of the jurisdiction clause and acknowledges the fact that negotiation cannot happen when there are no chances of it taking place.

However, before delivering its verdict on the merits of the case i.e. whether it has jurisdiction as to entertaining Qatar’s application, the Court would have to decide on granting provisional measures and for the same it will have to be shown that irreparable prejudice would be caused to rights which are the subject of a dispute in legal proceedings along with the fact that there exists a link between interim measures sought and the subject matter of the proceedings on the merits.

About the Author:

Aakash is a law graduate from Faculty of Law, Jamia Millia Islamia, New Delhi. He is presently engaged as a legal intern with United Nations Development Program (UNDP) and holds the position of Consulting Editor of The Indian Journal of Law and Public Policy. Previously he has been associated with Asian African Legal Consultative Organisation (AALCO), South Asia Human Rights Documentation Centre (SAHRDC) and the Chambers of Honourable Justice Dr. S. Muralidhar (Delhi High Court).